CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24351/94                       by Eshat AKTAS                       against Turkey         The European Commission of Human Rights sitting in private on 4 September 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  P. LORENZEN              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 May 1994 by Eshat AKTAS against Turkey and registered on 8 June 1994 under file No. 24351/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       9 January 1995 and the information and observations in reply       submitted by the applicant on 11 October 1994, 6 March 1995 and       2 May 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Turkish national of Kurdish origin, resident at Derik, Mardin/Diyarbakir, is the elder brother of Yakup Aktas, who died on 25 November 1991 while he was in the Mardin Gendarme Regimental Command interrogation centre. He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both teachers at the University of Essex.         The facts as submitted by the parties may be summarised as follows.   A.     The particular circumstances of the case         The applicant states that the following occurred:         Yakup Aktas, who was a grocer and a delegate of the DYP (True Path Party), was arrested by gendarme officers at about 16.00h on Sunday 18 November 1990 in Derik. According to the applicant, his brother was arrested on suspicion of assisting and sheltering representatives of the PKK. He was taken by gendarme officers to the Derik Health Centre where a doctor issued a certificate dated 18 November 1990 stating he was in good health and that there was no sign of beating, force or violence.         Yakup Aktas was then taken to the Mardin Gendarme Regimental Command interrogation centre.         On 25 November 1990 the authorities notified the uncle of the applicant and of Yakup Aktas that Yakup Aktas was dead. The burial permit was signed by two State Prosecutors, two medical experts and a hospital employee.         On Monday 26 November 1990, the applicant's and Yakup Aktas' uncle received the body of Yakup Aktas from the morgue of the Mardin State Hospital.         While the relatives of Yakup Aktas were waiting near Kiziltepe to bury him, the State security forces took the body immediately to Derik Cemetery and carried out the burial. A high level of security was imposed on the whole area and, in particular, members of the Human Rights Association were prevented from attending at the Hospital or at the Cemetery. The applicant alleges that the State security forces wanted to prevent members of the family or representatives of human rights organisations from seeing the state of the corpse of Yakup Aktas.         Nevertheless, Mahmut Aktas, another brother of Yakup Aktas, who washed his body, saw bruises and scratches on his right and left wrists and arms, and on his back. The back of his head was completely crushed, and blood was still flowing. There was also an injury to his forehead and above his eyebrows.         On 15 January 1991, in answer to a question, the Minister of Justice stated in part that, "No pathological discovery, trace of injury by a weapon producing shot, nor a sharp cutting instrument was discovered on the body of Yakup Aktas during the investigation carried out". Nevertheless, the contents of the official "Examination of the Deceased and Autopsy Record" dated 26 November 1990 stated:         "The neck, upper thorax, and 15 cm. down the thorax from the chin       and the ears was covered by a mauve area in the shape of a mask       (cyanosis) ...; in the area of the forehead in the middle of the       left eyebrow 3 cm. above it, 1x0.5 in dimension, there was a 1-2       day old contraction of the skin consistent with trauma ... Above       the left humerus exterior on a parallel axis to the body was a       10x2 cm. ecchymosis (bruising) of the skin effected by blunt       trauma; on the left forearm and hands and fingers it was       established that this area was covered by an extensive       ecchymosis; on the right arm humerus upper exterior on a parallel       axis 4x1 cm. was an area of ecchymosis consistent with trauma.       5 cm. below this commencing from beneath the right arm, facing       the inside, was an area of ecchymosis 4x2 cm. in size, visibly       extending to the middle axis 8 cm. of the body, 0.3 cm. in size       being an even-sided cut, in the area between the right forearm       and wrist, in the ecchymotic area described. On the left foot       exterior surface there was to be seen a widespread ecchymotic       area ... The manual examination of the back revealed a half-moon       shaped 8 cm. scar above the right scapula, of around 7-8 days       age; no other pathological discovery was made ... Aside from the       above diagnoses of the corpse, there was no other pathological       diagnosis, nor traces of a sharp instrument, either hot or       without heat having caused any wound at all."         The autopsy had stated that it had not been possible to ascertain the certain cause of death.         On 27 November 1990, the Derik chief prosecutor issued a decision of no territorial jurisdiction to consider the applicant's complaint of the death of Yakup Aktas by means of torture. He sent the file to the chief prosecutor in Mardin who on 29 November 1990 held that he had no jurisdiction pursuant to the state of emergency legislation (Decree 285 of 14.7.87). The file was then sent to the Mardin Province Administrative Council.         On 20 February 1991, the Forensic Medicine Institute issued its report which had been requested as regards the cause of death. It found no peculiarities on internal and microscopic examination, no trace of toxic substances, and concluded that it was not possible to determine the cause of death from the existing findings.         On 14 March 1991, the applicant and Mahmut Aktas gave their statements to the police.         On 6 June 1991, the Mardin Province Administrative Council decided not to continue the investigation against two named gendarme officers in connection with the death of Yakup Aktas. It considered that there was insufficient evidence against these officers.         On 24 June 1991 the Council of State annulled the decision of 6 June 1991, and, having regard to the findings in the autopsy reports, decided that criminal investigations should be carried out against the two officers. It referred the case to the Mardin Criminal Court.         In 1992 the applicant, with Mahmut Aktas intervening, was complainant in the prosecution of the two gendarme officers for the offence of causing the death of Yakup Aktas by beating him during interrogations.         On 23 September 1992 the Mardin 2nd Criminal Court declared itself incompetent in this case.         On 26 October 1992 the 9th Criminal Court in Ankara determined that it had no authority to hear the case and sent the file to the Court of Cassation for resolution of the disputes of competence between the Ankara and Mardin Criminal Courts.         In or about March 1993, the case was referred back to the Mardin 2nd Criminal Court.         On 21 September 1993 the Court questioned Mahmut Aktas about Yakup Aktas and adjourned its hearing until 23 November 1993. On 23 November 1993, three witnesses were heard, (a hospital orderly, a judicial clerk and a driver), none of whom recalled the autopsy, and the case was adjourned until 2 February 1994. A hearing was held on 2 February 1994 and the case was again adjourned until 30 March 1994. On that date there was a further adjournment until 11 May 1994.         On 11 May 1994, a number of gendarme witnesses gave evidence to the effect that, while the accused had been involved in interrogating the deceased, both had left several days before the deceased's death and did not return until afterwards. The prosecution requested an acquittal on the grounds that it had not been possible to obtain sufficient and credible evidence for the conviction of the accused. In its judgment of the same day, the Court found insufficient evidence on which to convict the two defendant gendarmes, Aytekin Özen, an intelligence major, and Ercan Günay, a special sergeant, for causing the death by torture of Yakup Aktas. The defendants accordingly were acquitted. The Court referred to the evidence to the effect that the first defendant had left the interrogation centre 3-4 days before the deceased's death, and that the second defendant had also left several days before the death occurred. The Court also referred to the report dated 20 February 1991 from the Forensic Medicine Institute which found that "it would not be possible to determine the cause of death according to the findings available".   B.     Relevant domestic law and practice         Civil and administrative procedures         Article 125 of the Turkish Constitution provides as follows:         (translation)         "All acts or decisions of the Administration are subject to       judicial review ...         The Administration shall be liable for damage caused by its own       acts and measures."         The Government assert that this provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the Administration, whose liability is of an absolute, objective nature, based on a theory of "social risk". Thus the Administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.         The principle of administrative liability is reflected in the additional Article 1 of Law 2935 of 25 October 1983 on the State of Emergency, which provides:         (translation)         "... actions for compensation in relation to the exercise of the       powers conferred by this law are to be brought against the       Administration before the administrative courts."         Proceedings before the administrative courts are in writing.   COMPLAINTS         The applicant alleges violations of Articles 2, 3, 6, 13 and 14 of the Convention.         The applicant complains under Article 2 that Yakup Aktas was killed intentionally and recklessly by torture during police custody and that his right to life was not adequately protected. He also invokes Article 14 in conjunction with Article 2 since only Turkish citizens of Kurdish origin are regularly subjected to unlawful killings and injuries.         He complains under Article 3 of torture and infliction of inhuman and degrading treatment upon Yakup Aktas.         He complains under Article 6 of the failure to initiate or to follow through to a conclusion criminal proceedings against those responsible for the torture and killing of Yakup Aktas, as a result of which the applicant cannot bring civil proceedings arising out of those events. He alleges therefore that he has been denied access to court. He also complains of a violation of Article 14 in conjunction with Article 6 since the breakdown of the investigation and prosecution system in relation to the acts of the security forces only arises on a systematic basis in South-East Turkey.         He further alleges that, due to the delays and complications confronting the applicant and his family in seeking to ascertain the cause of his brother's death and to have those responsible brought to justice, they have been denied an effective remedy in violation of Article 13.         As regards exhaustion of domestic remedies, the applicant states that every effort has been made to obtain remedies in Turkey but that it has become apparent that no remedy is to be found. He submits that there is an administrative practice in South-East Turkey of violation of Articles 2, 3, 6 and 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 May 1994 and registered on 8 June 1994.         On 30 August 1994, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 9 January 1995, after the expiry of the extension in the time-limit. The applicant submitted observations in reply on 6 March 1995 and further information on 11 October 1994 and 2 May 1995.   THE LAW         The applicant alleges that his brother was tortured and killed while in detention. He invokes Article 2 (Art. 2) (the right to life), Article 3 (prohibition on inhuman and degrading treatment), Article 6 (Art. 6) (the right of access to court), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) and Article 14 (Art. 14) (prohibition on discrimination) of the Convention.           Exhaustion of domestic remedies         The Government argue that the application is inadmissible since the applicant has failed to exhaust domestic remedies, as required by Article 26 (Art. 26) of the Convention, before lodging an application with the Commission.         The Government submit that the decision of acquittal could have been subject to appeal to the Court of Cassation. Moreover the applicant has the possibility of introducing an action against the administration for compensation in accordance with Article 125 of the Constitution, and in such proceedings it would not have to be shown which person or persons had exposed the applicant's brother to torture but only that the State was responsible for the acts.         The applicant submits that the proceedings were subject to every conceivable delay, including the raising of pointless technical issues and objections to jurisdiction. He contends that the prosecution failed either to identify the correct defendants or to take steps to verify whether the accused were present at or around the time of death so as to be able to rebut the evidence. It was not, he submits, a serious prosecution and since the procedure was entirely fruitless it cannot seriously be suggested that they attempt to start a new process.         The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress. An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach. It is furthermore established that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77, p. 18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).         The Commission has noted the delay in the prosecution of persons in connection with the death of the applicant's brother in custody, ie. a period of three years, five and a half months between the death and the acquittal of the accused gendarmes. The Commission recalls that the prosecution took place on the direction of the Council of State after the Administrative Council had found insufficient evidence to prosecute, and that the case proceeded in Mardin only after the criminal court's own refusal of jurisdiction was overruled. In the course of the proceedings, it appears that no oral evidence was heard from the doctors involved in the various autopsy reports and examinations with a view to further exploring the significance of the findings, and that no evidence was put forward apparently to rebut the evidence that the two accused persons had been absent for a period of days before the death occurred, and had not returned until afterwards. The Commission also notes that the prosecution asked the criminal court to acquit the accused on the basis of insufficient evidence and that the court acceded to this request.         The Commission is of the opinion that these elements cast doubt on the efficacy of the investigation and prosecution pursued in relation to the death in custody of the applicant's brother. In view of this and the delay which has already elapsed, the Commission is not satisfied that the possible appeal to the Court of Cassation can be regarded as furnishing an effective remedy for the purposes of Article 26 (Art. 26) of the Convention.         The Commission also finds that in the circumstances of this case the applicant is not required to pursue any further legal remedy concerning his complaints (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75).         The Commission concludes that this application cannot be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.         As regards the merits         The Government rely, inter alia, on the two autopsy reports which failed to establish the cause of death in custody and claim that the reports do not support the allegations of torture or death by torture of the applicant's brother.         The applicant maintains his allegations, inter alia, that his brother was tortured in custody and died as a result. He provides an expert pathologist's opinion which doubts the thoroughness of the forensic examination on his brother, and which concludes that, in the absence of natural disease and with clear injuries on the deceased, death as a result of torture must be a very strong possibility.         The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill- founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Secretary to the Commission              President of the Commission          (H.C. KRÜGER)                             (S. TRECHSEL)